Dispensary FAQs

 

This page is designed to answer some of the most frequently asked questions about medical cannabis collectives and dispensaries in California. More information can be found on the cannabis resources page.

ARE COLLECTIVES AND DISPENSARIES THE SAME?

No, but the terms are often used interchangeably. The Medical Marijuana Program Act (SB 420) authorizes patients and caregivers to “associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes.” As a set of 2008 guidelines issued by the office of then-Attorney General Jerry Brown points out, “A collective is not a statutory entity, but as a practical matter it might have to organize as some form of business to carry out its activities.”

Legally, a collective is a group of qualified Prop. 215 patients, nothing more or less. When those groups decide to distribute medical cannabis among their respective members through a storefront or delivery service, that business is called a dispensary. Most local ordinances in California ban or restrict all types of patient collectives, not just those that operate dispensaries.

ARE DISPENSARIES LEGAL UNDER FEDERAL LAW?

The simple answer is “no,” and for simple-minded people that ends the discussion: Federal law trumps state law, right? That’s the central issue in a test case involving Anaheim’s dispensary ban, which is based on federal law. The city of Fresno’s 2006 dispensary ban draws on the same concept, as does the Sacramento County ban passed in December.

But the 4th District Court of Appeal rejected the federal pre-emption argument in 2010. The second appeal of that case is under way, but in the meantime, the Anaheim ruling has the force of law: “California’s decision in the (Compassionate Use Act) and the (Medical Marijuana Program Act) to decriminalize for purposes of state law certain conduct related to medical marijuana does nothing to ‘override’ or attempt to override federal law, which remains in force.” The more recent Riverside ruling concurs: “We agree that under Qualified federal preemption of state medical marijuana law is not a valid basis for upholding Riverside’s zoning ordinance banning (medical marijuana dispensaries).”

Interestingly, people rarely question whether federal law trumps the state’s medical cannabis laws themselves – there is no case law that declares Proposition 215 is invalid; or the Legislature’s 2003 follow-up, SB 420; or 2010’s SB 1449, making simple possession of non-medical cannabis an infraction instead of a misdemeanor. The U.S. Supreme Court found that medical cannabis dispensaries were illegal under the Controlled Substances Act in 2005 – but it didn’t overturn Prop. 215 or SB 420.

If the legal issues are confusing, consider how federal law is enforced. In July, Deputy U.S. Attorney General James Cole issued a memorandum that attempted to clarify federal policy with regard to enforcement in the 16 U.S. states where medical marijuana is legal or decriminalized. According to Americans for Safe Access, Cole’s memo threatened enforcement actions against “Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities,” including local and state officials. The memo further underscored that “State laws or local ordinances are not a defense to civil or criminal enforcement of federal law.”

As ASA and other advocacy groups have pointed out, the Cole memo appeared to be a retreat from President Obama’s pledge that he was “not going to be using Justice Department resources to try to circumvent state laws” regarding medical cannabis. It also backtracked from a 2009 memo issued by Deputy Attorney General David Ogden, which stated that federal resources should not be used for “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” U.S. Attorney General Eric Holder testified before Congress in December that the Ogden policy still applies, even though dispensaries in California and other states are being targeted in a new wave of federal raids.

U.S. Attorneys have sent letters threatening public officials from at least 10 states with criminal prosecution if they implement laws regulating the production and distribution of medical marijuana, according to ASA. In California, the U.S. Attorneys’ Office has not only sent warnings to elected officials but also to landlords who rent property to dispensaries. The Cole memo appears to give wide discretion to prosecute dispensaries and large-scale growers, while also placing landlords and government officials and/or employees into the realm of potential targets.

Complicating matters further, the Second District Court of Appeal in Los Angeles said in an October ruling that a Long Beach ordinance permitting dispensaries violated federal law. “The city’s ordinance … goes beyond decriminalization into authorization,” reads the ruling, which has been appealed to the California Supreme Court. Since then, Sacramento stopped processing dispensary permits under that city’s ordinance, and Eureka reversed course by passing a dispensary moratorium. Chico and Redding both repealed their regulatory ordinances, citing federal warnings.

On Oct. 27, Americans for Safe Access filed suit against U.S. Attorney General Eric Holder and Melinda Haag, the U.S. Attorney for California’s Northern District. The lawsuit accuses the federal government of seeking to “coerce and commandeer” California’s police and regulatory powers over medical cannabis, in violation of the Tenth Amendment to the U.S. Constitution. Federal lawsuits filed by dispensary operators around the state are also pending, though a judge denied their request for an injunction to stop future raids.

ARE DISPENSARIES LEGAL UNDER CALIFORNIA LAW?

It depends on who you ask. Sheriff Margaret Mims first supported a dispensary ban more than a year ago in an appearance before county supervisors, a stance she has repeated consistently since then. “I do not believe that the Medical Marijuana (Program) Act or Prop. 215 legally allow for dispensaries or storefronts as they currently exist,” she said in December 2010.

Yet then-Attorney General Jerry Brown’s office released a set of guidelines in 2008 that supports the idea of legal, collective cultivation by Prop. 215 patients. “Neither Proposition 215, nor the MMP, conflict with the CSA (federal Controlled Substances Act) because, in adopting these laws, California did not ‘legalize’ medical marijuana, but instead exercised the state’s reserved powers to not punish certain marijuana offenses under state law when a physician has recommended its use to treat a serious medical condition.”

The AG’s guidelines don’t have the force of law, nor do they say that medical cannabis is even legal. Prop. 215 and SB 420 didn’t legalize anything, including storefront dispensaries or large-scale grow sites. Prop. 215 provides patients with an affirmative defense should they be arrested on suspicion of violating state laws prohibiting marijuana cultivation, transportation, distribution and sales. SB 420 created “get out of jail free” ID cards, but many patients fear being in a statewide database, even one designed to help them avoid arrest. Both laws are silent on how and when patients can exchange cannabis, whether through a storefront dispensary or other nonprofit business.

While an update of the AG guidelines was in the works, Attorney General Kamala Harris in December called for action from the California Legislature. “Without a substantive change to existing law, these irreconcilable interpretations of the law, and the resulting uncertainty for law enforcement and seriously ill patients, will persist,” she wrote in a letter to Senate President Darrell Steinberg and Assembly Speaker John Perez.

Whether the Legislature will act in 2012 remains to be seen. Independent of that process, the legal status of dispensaries could change substantially if voters pass one or more cannabis reform measures in the November statewide general election.

ARE DISPENSARIES LEGAL UNDER LOCAL ORDINANCES?

Dispensaries are not permitted throughout Fresno County (effective March 9, 2012) and most if not all of its cities. Violations can result in criminal and/or civil liability, depending on the specific language of the ordinance. You can see examples on the city ordinances and county ordinances pages.

Fresno County’s medical marijuana ordinance bans dispensaries and so strictly limits cultivation that it amounts to a de facto ban. Even so, collective operators have for now abandoned efforts to pass a ballot measure that would replace the ordinance passed in August. Attorney Bill McPike, a medical cannabis patient, cited the Long Beach ruling when he filed suit against the county in October; more litigation seems likely.

In November, the Fourth District Court of Appeal upheld Riverside’s dispensary ban. While Anaheim’s ban is still under appeal, Riverside shows the likely outcome: Local governments have broad land-use authority that can be applied to cultivation and dispensaries – but only in the absence of state law that occupies the whole field of medical cannabis regulation.

In December, a statewide coalition of advocates including Americans for Safe Access and the California Cannabis Association submitted a ballot measure that would establish a state panel to oversee cultivation, distribution and sales. Should that initiative or one or more legalization measures qualify for the November 2012 ballot, debate will focus on whether statewide regulation of cannabis is preferable to local ordinances and bans. The feds don’t get to vote, but they’ll likely try to influence state voters, just like they did with Prop. 19 in 2010.

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Medical Marijuana Dispensary FAQs by FresnoCannabis.org is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License. Based on a work at fresnocannabis.org.

 Posted by at 5:49 pm